Migrant courts get more latitude

Updated 10:47 pm, Thursday, March 14, 2013

With immigration courts still backlogged more than a year after the Obama administration launched a controversial policy to close certain deportation cases, the nation's top immigration judge has encouraged colleagues to take matters into their own hands.

In a memo issued this month, Chief Immigration Judge Brian O'Leary wrote that judges are “encouraged to consider” a landmark ruling from last year that allows them to close deportation cases over the objection of prosecutors.

The decision was hailed by immigration lawyers, who said it will help relieve heavy dockets of languishing cases. San Antonio had the second-largest backlog in the state with 10,000 cases pending last year.

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But a former immigration judge criticized the guidelines as sending the message that immigration laws won't be enforced, adding that administrative closure, which puts deportation proceedings on the shelf, leaves immigrants in legal limbo.

The recommendation to consider closing cases despite the government's objection came in a memo in which O'Leary lamented the backlog in the nation's immigration courts.

Morton's prosecutorial discretion guidelines, which encouraged ICE's attorneys to focus on immigrants who committed serious crimes and shelve the cases of those who meet certain guidelines, such as serving in the military or having U.S. citizen families, haven't made much of an impact, Curtright said.

Of the more than 16,000 cases closed since the so-called Morton Memo was issued in 2011, only about 200 were in San Antonio courts, according to TRAC.

Administratively closing a case means a judge sets it aside and takes it off the docket, but it can be reopened at any time.

To deal with the backlog, O'Leary wrote, judges can administratively close cases even when ICE prosecutors object. In the past, he wrote, judges couldn't close a case unless the government recommended it. An appeals case decided last year changed that.

In the Matter of Bavakan Avetisyan, the Board of Immigration Appeals ruled that immigration judges can administratively close cases even if one side objects.

“Requests for administrative closure ... should be granted in appropriate circumstances. Since our resources are limited, those resources must be applied to situations where there is an actual dispute between the parties,” O'Leary wrote. “However, administrative closure cannot be used simply to remove a case from the court docket.”

Former immigration Judge Mark Metcalf said the backlog is the result of underfunded courts being overwhelmed by the number of cases.

O'Leary's memo “is basically saying, 'We give up. We can't hear the cases, and even if we hear them, DHS is not going to remove them anyway,'” Metcalf said.

“The downstream effect is that aliens who come to the United States will be reinforced in their belief that they won't be removed,” Metcalf added.

Cases like the one involving Avetisyan, an Armenian immigrant whose deportation proceedings were repeatedly delayed because she had a pending visa petition, are common, Curtright said.

Deportation cases that can't proceed until a visa petition or legal issue is decided outside the immigration court end up clogging dockets, Curtright said.